Reasons for Decision

Court File No.: CV-23-00692646-00CP
CV-23-00695057-00CP (Loyie v. Attorney General of Canada)
Date: 2025-03-05
Ontario Superior Court of Justice

Between:
David Peter McMath, Plaintiff
and
Attorney General of Canada, Defendant

And Between:
Darcy Loyie, Plaintiff
and
Attorney General of Canada, Defendant

Before: Benjamin Glustein

Counsel:
Adam Kanji, H. Michael Rosenberg, and Gerry Altman for the plaintiffs in both actions
Melanie Toolsie, Danielle A. Johnson, Negar Hashemi, and Diane Fernandes for the defendant in both actions

Heard: 2025-02-10

Nature of Motion and Overview

[1] By reasons for decision dated June 7, 2024 in Reddock v. Attorney General of Canada, 2024 ONSC 3238 (the “SJ Decision”), Justice D. Wilson (as she then was)[^1] released a single set of reasons on five summary judgment motions addressing the individual claims for damages of five class members, brought pursuant to the Distribution and Individual Issues Protocol (the “Protocol”) arising from the “Brazeau/Reddock/Diggs” class actions in Ontario and Quebec related to administrative segregation[^2] (the “BRD Class Actions”).[^3]

[2] In the BRD Class Actions, the court held that the Correctional Services of Canada had breached ss. 7 and 12 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) by unlawfully placing inmates in administrative segregation.

[3] The five summary judgment motions decided by the SJ Judge were heard in October 2023 as part of a group of ten “test” or “bellwether”[^4] cases which were selected to provide guidance to class members and counsel with respect to the significant number of individual “Track 3” actions which are to proceed by summary judgment.

[4] In the SJ Decision, the SJ Judge:

• (i) dismissed the individual actions for additional damages brought by the plaintiffs David Peter McMath (“McMath”) and Darcy Loyie (“Loyie”); and
• (ii) awarded damages to the plaintiffs Christopher Brazeau, David Kift, and Jullian Reddock.

[5] McMath and Loyie[^5] seek to appeal the SJ Decision.

[6] For the purposes of this motion, and without prejudice to their position that they can appeal as of right, these plaintiffs accept that they require leave to appeal the SJ Decision pursuant to s. 30(9) of the Class Proceedings Act, 1992 (“CPA”) and Rule 12.06(3)(b) of the Rules of Civil Procedure (the “Leave Motion”).

[7] A sequencing issue arose between the parties. These plaintiffs seek to have the Leave Motion stayed, and heard only after the determination of summary judgment motions in the four[^6] test cases in the individual actions which remain from the initial ten originally scheduled to be heard by the SJ Judge in October 2023 (the “remaining test cases”).

[8] The defendant, the Attorney General of Canada (“Canada”) submits that the Leave Motion should not be stayed, and should be determined before the summary judgment motions in the remaining test cases.

[9] Consequently, these plaintiffs bring the present motion to stay the Leave Motion, pending determination of the remaining test cases.

[10] I dismiss the stay motion. Under the settled test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 348 (see also Vecchio Longo Consulting Services Inc. v. Aphria Ltd., 2021 ONSC 5953 (Div. Ct.), at para. 3), I find that:

• (i) There is a serious question to be tried that the Leave Motion could succeed. On a preliminary assessment of the case, these plaintiffs have met the “low threshold” to establish that it is not “frivolous or vexatious”[^7] that a court on the Leave Motion would find that “the correctness of the [SJ Decision] order is open to very serious debate”[^8], and as such obtain leave to appeal under Rule 12.06(3)(b).
• (ii) However, these plaintiffs failed to establish that (a) they would suffer irreparable harm if the Leave Motion were not stayed pending determination of the remaining test cases or (b) the balance of convenience favours granting a stay. Hearing the Leave Motion prior to the remaining test cases will not cause any prejudice to these plaintiffs. Further, the balance of convenience favours determining whether an appeal will be permitted before deciding whether to hear the remaining test cases. Consequently, it is in the interests of justice and the efficient use of judicial resources that the Leave Motion be determined first.

Facts

[11] Pursuant to the decisions of the courts in the BRD Class Actions, aggregate damages were ordered to each class member who spent at least 15 consecutive days in administrative segregation. Each such class member would receive approximately $8,400 (approximately $5,500, after deductions) as a base level of Charter damages.

[12] Under the Protocol established following the decisions in the BRD Class Actions, individual class members could choose to follow:

• (i) Track 1, which allows for base level Charter damages only.
• (ii) Track 2, under which claims are presented to an independent health professional who assesses damages up to $50,000 according to specific criteria.
• (iii) Track 3, under which claims have no cap on damages and are decided by the courts by summary judgment motion with the full procedural benefits of the summary judgment procedure.

[13] In a joint set of reasons released in the BRD Class Actions by Justice Perell and Masse, reported at 2020 ONSC 7229 and 2020 ONSC 7232, the court set out the following facts at para. 131, which were to be considered as “issue estoppels in Ontario and findings that result in « chose jugée implicite » or that have to be considered as relevant juridical facts in Québec”:

a. Canada contravened the Charter rights of all Class Members and the Class Members suffered similar injuries of different intensities.
b. Administrative segregation causes serious physical and serious psychological harm to any inmate placed in administrative segregation and the harm is particularly acute for those already suffering from serious mental diseases and disabilities.
c. Administrative segregation causes the following effects: aggression, anxiety, cognitive dysfunction, delusions, depression, hallucinations, hopelessness, hypersensitivity, impaired memory and concentration, irritability, loss of control, panic attacks, paranoia, psychosis, rage, severe obsessional rituals, self-mutilation, significant impairment of ability to communicate, sleep disturbances, suicidal ideation and behaviour, withdrawal, and a sense of impending emotional breakdown.
d. Negative health effects from administrative segregation can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.
e. The harm from administrative segregation does not stop with the end of the placement but continues long after the inmate returns to the general population and in some inmates the harm is permanent.
f. All of the Class Members suffered psychiatric harm from being placed in administrative segregation, which in truth is solitary confinement contrary to the Mandela Rules.
g. It has been widely recognized from 2011 that prolonged solitary confinement of any inmate caused serious harm and should be avoided.

[14] Justices Perell and Masse added, at paras. 129 and 132:

• (i) "In addition, to the above binding issue estoppels or findings resulting in « chose jugée implicite » or having to be considered as relevant juridical facts, we agree … that the longer a person spends in solitary confinement the more severe the harm they suffer."
• (ii) “The [Protocol] does not reopen the common issues phase but rather properly employs it for the determination of individual issues.”

[15] Justices Perell and Masse further set out the approach to be taken on the individual actions, at paras. 133-136:

[A] mechanical per diem approach is not something that can be extrapolated from the issue estoppels in the immediate cases.

General causation of harm is no longer an issue at the individual issues stage of Brazeau, Reddock, and Gallone. Apart from the general damages from the illegal placement in administrative segregation, specific causation of particular harms remains an individual issue.

The Class Members are entitled to receive general or moral damages for their similar injuries, but what remains to be determined at the individual issues stage is specific causation and the quantum of the compensation to be provided for the harm caused by the Class Member’s unlawful placement into administrative segregation. We agree with Canada that the issue of quantum is idiosyncratic and cannot be determined by a mechanical application of a per diem rate.

While the duration of placement in administrative segregation has already been proven on a class-wide basis to be a relevant factor in calculating the harm suffered, it still is an idiosyncratic factor. Comparatively speaking, some inmates might suffer more from a short duration placement than other inmates who had longer duration placements.

[16] In light of the above principles, ten Track 3 summary judgment motions were scheduled to be heard in October 2023 by the SJ Judge. On July 1, 2023, two weeks before the deadline for Canada to file responding materials on the motions, Canada advised counsel for the plaintiffs in the ten test cases that Canada (i) required a 90-day extension and (ii) would bring a motion to contain the scope of the summary judgment motions.

[17] Canada took the position that (i) some of the pleadings raised new causes of action and theories of liability and (ii) it required additional time to respond to the test plaintiffs’ expert evidence.

[18] Canada sought to adjourn all of the ten test cases. The plaintiffs proposed that the ten Track 3 summary judgment motions be split up with five summary judgment motions to be heard in October 2023 and the remaining five to be heard in early 2024.

[19] At a case conference on July 14, 2023, Justice Perell agreed with the plaintiffs and ordered five of the test cases to proceed on the original October 2023 dates and adjourned the remainder of the test cases to 2024 to a date to be scheduled by the SJ Judge.

[20] The October 2023 hearing proceeded and five Track 3 cases were heard. The remaining cases were scheduled by the SJ Judge to be heard from February 26 to March 1, 2024. However, on February 22, 2024, on her own initiative, the SJ Judge adjourned those remaining summary judgment motions sine die to allow Justice Perell to hear Canada’s motion scheduled for May 5, 2024 on, inter alia, the proper scope of the Track 3 claims.

[21] Justices Perell and Masse heard the scope motion on May 7-8, 2024 and released their decision on May 23, 2024.

The SJ Decision

[22] The SJ Judge released the SJ Decision on June 7, 2024.

[23] In the SJ Decision, the court awarded additional damages of $75,000 to Mr. Brazeau, $50,000 to Mr. Reddock, and $25,000 to Mr. Kift.

[24] The SJ Judge dismissed the individual actions of these plaintiffs who were seeking additional damages.

[25] McMath spent 709 days in administrative segregation during the class period: SJ Judgment, at para. 239. He sought damages of $893,127. The SJ Judge held, at paras. 257 and 262:

Justice Perell made findings of fact concerning the effects of segregation on inmates and awarded aggregate damages as a result, but left it open to individual Plaintiffs to pursue a trial if they felt that there were idiosyncratic effects that justified an additional damages award. One of Justice Perell’s findings and an issue estoppel was that the claimants “suffered horribly” from their time in administrative segregation: Reddock Common Issues. While the evidence from Mr. McMath on this motion confirms that finding, the issue before me is whether Mr. McMath is entitled to additional damages. To be successful, he must demonstrate on a balance of probabilities that but for his time in segregation he would not have suffered the additional harms.

There are contemporaneous records that confirm while in segregation Mr. McMath was agitated, and experienced panic attacks and symptoms of depression and he sought treatment from mental health providers.

[26] The SJ Judge concluded, at para. 279:

I do find that during his 709 days in solitary confinement from 2011 to 2019, Mr. McMath suffered because of the treatment and conditions of his placements, those damages have been addressed through the aggregate damage award. I do not find on the evidence that Mr. McMath has proven that as a result of his time in segregation, he suffered further harm in addition to the general harm that was caused to all inmates who were placed in administrative segregation.

[27] Loyie spent 231 days in administrative segregation during the class period: SJ Judgment, at para. 190. He sought damages of $221,487. The SJ Judge held, at paras. 219 and 229:

The jurisprudence is clear that any Plaintiff bears the onus of proving on a balance of probabilities that but for a certain event or series of events, the Plaintiff would not have sustained the injuries or losses that he or she did. In the instant case, the question may be posed, “But for Mr. Loyie’s placements in administrative segregation, would his mental illnesses and substance abuse exist in the state that they are at present?”

I accept that Mr. Loyie was harmed by his time in segregation, as all class members were. Justice Perell has commented on that and found that all Class Members suffered psychiatric harms from being placed in segregation. As a result, he awarded aggregate damages to the class which were meant to address compensation for what they had suffered as well as vindication and deterrence damages. In the Brazeau Damages Redetermination, Justice Perell noted, “…many if not most of the Class Members… will not need to proceed to individual damages assessments for compensation because they will already have been fully compensated for this head of damages, and vindication and deterrence will also have been achieved on a class-wide basis by the aggregate award.”

[28] The SJ Judge concluded, at para. 236:

Being a vulnerable person does not relieve a Plaintiff from establishing the causal connection between an actionable wrong and damages suffered. The Plaintiff has failed to do this on the evidentiary record before me. While the Plaintiff suffered during his time in segregation, he has been compensated for that through the aggregate damage award and he has failed to prove on a balance of probabilities that his placements in segregation caused additional harms. I make no award of further damages to Mr. Loyie as a result of his time in segregation.

[29] Each of these plaintiffs paid $119,592.71 to settle Canada’s claim for adverse costs on the motions for summary judgment.

[30] These plaintiffs bring the Leave Motion for leave to appeal the SJ Judgment. Neither the Leave Motion nor the remaining test cases have been scheduled as (i) these plaintiffs seek a stay of their Leave Motion until the remaining test cases are determined and (ii) Canada submits that the Leave Motion proceed before the remaining test cases are determined.

Analysis

The Applicable Test to Obtain a Stay

[31] The applicable test to obtain a stay is the same as to obtain an interlocutory injunction. The three-part test is set out in RJR-MacDonald. I address each of the requirements below.

Step 1: A Serious Question to Be Tried

[32] A party seeking a stay must establish a “serious question to be tried” on the proceeding sought to be stayed. It is a “low threshold” that requires the party to establish only that the proceeding sought to be stayed is “not frivolous or vexatious” based on a “preliminary assessment … of the merits”. “A prolonged examination of the merits is generally neither necessary nor desirable”: RJR-MacDonald, at pp. 334-335, 337-338.

Step 2: Irreparable Harm

[33] A party seeking a stay must establish “irreparable harm” if the stay is not granted. In RJR-MacDonald, the court held, at p. 341:

At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin). […]

[34] Irreparable harm must be established on clear and non-speculative evidence: Astrazeneca Canada Inc. v. Apotex Inc., 2011 FC 505, at para. 56, affirmed 2011 FCA 211; Aventis Pharma S.A. v. Novopharm Ltd., 2005 FC 815, at paras. 59-61, affirmed 2005 FCA 390.

[35] Evidence which is hypothetical or speculative is not sufficient to establish irreparable harm. “[T]here must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”: Gateway City Church v. Canada (National Revenue), 2013 FCA 126, at paras. 15-16.

Step 3: Balance of Convenience

[36] A party seeking a stay must establish that the balance of convenience favours such relief. In RJR-MacDonald, the court held, at p. 342:

The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p. 129 as: "a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits". […]

[37] “[T]he balance of convenience component of the test […] ensures flexibility in the application of equitable principles in diverse factual situations”: David Hunt Farms Ltd. v. Canada (Minister of Agriculture), at pp. 188-189.

Other Relevant Principles on a Motion for a Stay

[38] Each motion for a stay or interlocutory injunction is “context-specific.” “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case”: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, at para. 25.

[39] The three-part test in RJR-MacDonald is a wholistic set of factors and not three separate and distinct requirements. The three “factors relate to each other, and strength on one part of the test ought to be permitted to compensate for weakness on another”: Bell Canada v. Rogers Communications Inc. at para. 39.

Does a Higher Standard Apply to an Appeal of a Final Decision?

[40] Canada submits that a higher standard applies to the present stay motion since these plaintiffs are, in effect, seeking to stay a final decision of the court dismissing their individual actions.

[41] These plaintiffs do not accept that (i) a higher standard applies to an appeal of a final decision of the court or (ii) a stay of the Leave Motion is akin to a stay of a final judgment.

[42] Canada relies on the principle that the discretion to stay a final judgment “ought to be used very sparingly and only in circumstances where it could be found that not only would it be oppressive or vexatious or an abuse of process of the court, but also in circumstances where it would not cause an injustice to the plaintiff”: 1247902 Ontario Inc. v. Carlisle Power Systems Ltd., [2003] O.J. No. 6300 (Div. Ct.), at para. 10.

[43] However, in the decision of the Court of Appeal in 1247902 Ontario Inc. v. Carlisle Power Systems Ltd., [2005] O.J. No. 118 (C.A.), the court did not address whether the higher standard set out by the Divisional Court at paras. 7-11 would apply. The Court of Appeal held that since the lower threshold under RJR-MacDonald could not be met, it was not necessary to decide whether a higher standard applied: at paras. 1-4.

[44] In Zenith Aluminum Systems Ltd. v. 2335945 Ontario Inc., 2021 ONSC 1128, the court took a similar approach and did not determine whether a higher standard was required for a stay of a final arbitral award since the lower threshold from RJR-MacDonald was not met in any event: at para. 52.

[45] As I set out below, I adopt a similar approach in the present case. I do not consider whether a higher standard in Carlisle (Div. Ct.) would apply since I find that these plaintiffs have failed to meet the lower standard under RJR-MacDonald.

Application of the Law to the Present Case

Issue 1: Is There a Serious Question to Be Tried on the Leave Motion?

(i) The Applicable Test on This Motion

[46] I first consider the applicable test on this motion. I then apply that test to the present case.

[47] The role of the court under the first RJR-MacDonald requirement is only to determine whether there is a serious question to be tried on whether leave to appeal would be granted under Rule 12.06(3). I make no finding on whether these plaintiffs have satisfied the requirements under Rule 12.06(3) – that issue is for the judge hearing the Leave Motion. Consequently, these plaintiffs are only required to establish that it is not frivolous or vexatious that they could establish the requirements for leave to appeal under Rule 12.06(3).

[48] Rule 12.06(3) provides:

Leave to appeal from an order under subsection 30 (9), (10) or (11) of the Act shall not be granted unless,

(a) there has been a miscarriage of justice;[^9] or

(b) the order may be used as a precedent in determining the rights of other class members or the defendant in the proceeding under section 24 or 25 of the Act and there is good reason to doubt the correctness of the order.

[49] For the purposes of the present motion, these plaintiffs accept that leave to appeal is required under s. 30(9)(b) of the CPA which provides that:

With leave of the Superior Court of Justice as provided in the rules of court, a class member may appeal to the Divisional Court from an order under section 24 or 25.

(b) dismissing an individual claim made by the member for monetary relief.

[50] Consequently, the court on the present motion does not determine whether the Rule 12.06(3)(b) test will be met on the Leave Motion. Instead, the court only considers whether it is “frivolous or vexatious”, based on the court’s “preliminary assessment” of the merits of these plaintiffs’ arguments, that leave to appeal would be granted. If that “low threshold” is met, then there is a “serious question to be tried” for the purposes of granting a stay of the Leave Motion.

(ii) Application of the Test to the Present Case

1. A Serious Question as to the Precedential Value of the SJ Decision

[51] With respect to the first requirement under Rule 12.06(3)(b), there is a serious question to be tried that the SJ Decision dismissing these plaintiffs’ individual actions “may be used as a precedent in determining the rights of other class members or the defendant in the proceeding under section 24 or 25 of the Act.”

[52] It is not frivolous or vexatious for these plaintiffs to submit that the Track 3 cases before the SJ Judge were put forward as “test” or “bellwether” cases to provide guidance for all class members who would need to (i) consider the strength of their potential individual actions and (ii) decide which track to follow under the Protocol.

[53] Consequently, it is not frivolous or vexatious for these plaintiffs to submit that the test cases have precedential value even though each case is idiosyncratic.

2. A Serious Question of Whether There Is Good Reason to Doubt the Correctness of the SJ Decision

[54] As to the second aspect of the Rule 12.03(6)(b) test, there is a serious question to be tried on the requirement that there is good reason to doubt the correctness of the order.

[55] Based on the low threshold required under the RJR-MacDonald test and my preliminary assessment of the arguments to be made under Rule 12.06(3)(b) at the Leave Motion, I cannot find that the submissions of these plaintiffs are frivolous or vexatious.

[56] On the Leave Motion, the court will be required to determine whether “the correctness of the order is open to very serious debate”: Ash v. Lloyd’s Corp., at p. 284.

[57] As I note above, I make no finding as to whether leave to appeal would be granted. However, I find that these plaintiffs’ position raises a serious question to be tried. I rely on two bases raised by these plaintiffs, which I discuss below.

a. Damages to Intangible Interests

[58] In Vancouver (City) v. Ward, 2010 SCC 27, the court held that Charter damages can be awarded for “intangible interests” such as “distress, humiliation, embarrassment and anxiety”, to be “added” to a damages claim, even if the claimant cannot prove a substantial psychological injury: at para. 27.

[59] The SJ Judge referred to Ward at paras. 34 and 35 of the SJ Judgment reasons and noted the different nature of Charter damages. However, these plaintiffs submit that the SJ Judge erred because the court did not refer to (or consider) damages for “intangible interests” and instead focused on evidence of harm before and after the impugned administrative segregations. These plaintiffs submit that such an omission is inconsistent with the approach in Ward.

[60] These plaintiffs submit that there was evidence before the SJ Judge of the (i) lengthy administrative segregations of these plaintiffs and (ii) significant effect on their psychological and physical health. These plaintiffs rely on that evidence to support a claim for damages for intangible interests, even if they could not establish a “but for” change arising from the administrative segregations.

[61] Consequently, these plaintiffs submit that the SJ Judge erred by only considering “compensation [which] focuses on the claimant’s personal loss: physical, psychological and pecuniary”, instead of on damages to intangible interests which are to be “added” to the losses considered by the SJ Judge: Ward, at para. 27.

[62] These plaintiffs further submit that the alleged failure of the SJ Judge to consider intangible interests is inconsistent with the issue estoppels established by Justices Perell and Masse, which set out that (i) every class member suffered psychiatric harm when subject to administrative segregation, (ii) health risks rise with each additional day spent in administrative segregation, and (iii) the longer a person spends in solitary confinement the more severe the harm they suffer.

[63] These plaintiffs submit that the issue estoppels ground a basis for damages for intangible interests regardless of any change in condition arising from administrative segregation.

[64] Consequently, it is not frivolous or vexatious for these plaintiffs to rely on this ground to establish a “very serious debate” as to the correctness of the SJ Decision.

b. The Use of a “But For” Causation Test

[65] These plaintiffs submit that the SJ Judge erred by addressing causation on a “but for” test: SJ Decision, at para. 46.

[66] These plaintiffs submit that the use of a “but for” test fails to consider issue estoppels found by Justices Perell and Masse such as “administrative segregation causes serious physical and serious psychological harm to any inmate”, and “[t]he harm from administrative segregation does not stop with the end of the placement but continues long after the inmate returns to the general population and in some inmates the harm is permanent.”

[67] On a preliminary assessment of the merits, it is not frivolous or vexatious that these plaintiffs can establish a very serious debate that a “but for” analysis which focuses on the difference (if any) between an inmate’s psychological or physical condition before and after administrative segregation is not consistent with the binding causation conclusions of Justices Perell and Masse.

[68] At the Leave Motion, there will be full argument on these issues and the court can determine whether the Rule 12.06(3)(b) test is met. My analysis above is based solely on the low threshold required under RJR-MacDonald.

[69] For the above reasons, I find that these plaintiffs have established a serious question to be tried that a court on the Leave Motion could find that the correctness of the order is open to serious debate.

Issue 2: Have These Plaintiffs Established That They Would Suffer Irreparable Harm if the Leave Motion Were Not Stayed Pending Determination of the Remaining Test Cases?

[70] I find that these plaintiffs have failed to meet this requirement under RJR-MacDonald.

[71] These plaintiffs do not submit in their factum that they would suffer irreparable harm if the Leave Motion were not stayed pending determination of the remaining test cases, despite acknowledging that the irreparable harm test is required under RJR-MacDonald.

[72] Instead, these plaintiffs submit only that they “will suffer prejudice if a stay is not granted.”

[73] At the present motion, the stay is only sought for the hearing of the Leave Motion. Consequently, these plaintiffs must establish irreparable harm if the stay is not granted, i.e. if the Leave Motion proceeds before determination of the remaining test cases. That threshold is not met on the evidence before the court.

[74] These plaintiffs rely only on a hypothetical situation where (i) a judge denies leave to appeal heard before the remaining test cases and (ii) a judge hearing the remaining test cases chooses not to follow the approach taken by the SJ Judge. If such hypothetical results arose, these plaintiffs submit that if a stay had been granted, the court hearing a leave motion would have had “a broader slate of cases to consider when deciding to grant leave to appeal.”

[75] However, the above hypothetical scenario does not cause “irreparable” harm to these plaintiffs such that “it probably will not be possible for the court to put the parties back into the position they are currently in if leave to appeal is granted and the appeal succeeds”: Vecchio, at para. 13(b).

[76] In effect, these plaintiffs submit that it would be preferable to wait for the remaining test cases to be decided before the Leave Motion, so that they can rely on potential inconsistencies (if any) in those other judgments as a basis to seek leave to appeal. However, that strategic preference does not constitute prejudice to these plaintiffs’ ability to seek leave to appeal, let alone irreparable harm.

[77] These plaintiffs did not submit evidence to establish any inability to meet the test for leave under Rule 12.06(3)(b) if the Leave Motion was heard before a determination on the merits of the remaining test cases, except for the hypothetical strategic advantage discussed above. There is no prejudice because these plaintiffs will have to rely on any purported errors in the SJ Decision as the basis for leave, regardless of when the Leave Motion is heard.

[78] These plaintiffs’ submission is akin to a plaintiff in a stand-alone civil action asking the court to stay a leave motion after an unsuccessful motion, only because another court is dealing with a similar issue and may decide that issue differently. Of course, it might be strategically advantageous for the unsuccessful plaintiff to stay the leave motion until the other case was decided, but it would not constitute prejudice (or irreparable harm) since that plaintiff has the full ability to seek leave based on the “good reason to doubt the correctness test.”

[79] Unlike in Vecchio, the court in the present case is not asked to grant a stay of the interlocutory order pending an appeal, but is only asked to stay the Leave Motion.

[80] For the above reasons, I find that there is no irreparable harm to these plaintiffs if the stay is not granted.

Issue 3: Have These Plaintiffs Established That the Balance of Convenience Favours Granting a Stay of the Leave Motion Pending Determination of the Remaining Test Cases?

[81] The issue on the present motion is whether the balance of convenience favours a stay of the Leave Motion pending determination of the remaining test cases. The issue of whether a stay of the appeals (if the Leave Motion is successful) should be granted pending determination of the remaining test cases is not before the court and cannot be decided (if the parties do not agree) until leave to appeal is determined.

[82] As I discuss above, these plaintiffs will suffer no harm if the Leave Motion is heard. Conversely, it is in the interests of judicial efficiency that the Leave Motions be determined before determination of the remaining test cases. Proceeding with the Leave Motion will provide the parties with certainty as to whether an appeal will be permitted, so that the court can then consider (if requested by either party) whether those appeals should proceed prior to the determination of the remaining test cases. Such certainty is in the interests of justice.

[83] In effect, these plaintiffs seek on this stay motion an order that would have the remaining test cases be heard when it is not even known whether there is good reason to doubt the correctness of the SJ Decision. Consequently, the effect of a stay of the Leave Motion is to create uncertainty when there is no prejudice to these plaintiffs in having leave determined before the remaining test cases.

[84] The interests of justice do not support a hearing of four summary judgment motions when it is not even known whether the initial test cases are subject to appeal. That issue should be resolved first, so that the court can then consider (if leave to appeal is granted) whether the appeals should be held in abeyance.

[85] For the above reasons, the balance of convenience favours not granting a stay of the Leave Motion pending the determination of the remaining test cases.

Conclusion on the Stay Motion

[86] These plaintiffs have raised a serious question to be tried under Rule 12.06(3)(b) for the Leave Motion. However, given the lack of any prejudice and the failure to meet the balance of convenience test, I find that it is not in the interests of justice to grant the stay.

Order and Costs

[87] For the above reasons, I dismiss the motion.

[88] The parties exchanged costs outlines at the outset of the hearing in which each sought approximately $30,000 in costs on a partial indemnity scale.

[89] These plaintiffs submitted at the outset of the hearing that if any costs award were to be made against them, they would require the opportunity to obtain instructions and possibly provide submissions from the Class Proceedings Fund (the “Fund”). Canada agreed that the Fund would be entitled to make costs submissions.

[90] Consequently, even though Canada was the successful party and generally would be entitled to a costs award, I defer my decision as to entitlement and quantum of costs until review of submissions (if any) from these plaintiffs (or the Fund) on the costs sought by Canada.

[91] Unless the parties can agree on costs, these plaintiffs (or the Fund) are to deliver written costs submissions of no more than three pages collectively, by March 26, 2025. Canada shall deliver written costs submissions of no more than three pages responding to the objections of these plaintiffs or the Fund, by April 9, 2025. These plaintiffs or the Fund may file a reply written costs submission of no more than one page, by April 16, 2025.

[92] I thank counsel for their thorough written and oral submissions which were of great assistance to the court.

Benjamin Glustein
Date: 2025-03-05

[^1]: In these reasons, I refer to Justice Wilson as the SJ Judge.
[^2]: These plaintiffs interchangeably use the terms “solitary confinement” as well as “administrative segregation.” Canada uses the term “administrative segregation.” I use the term “administrative segregation” in these reasons but there is no dispute that the practice is the same regardless of the terminology.
[^3]: The actions are referred to as the “BRD Class Actions” since the representative plaintiffs in the Ontario and Quebec class actions were Messrs. Brazeau, Reddock and Diggs. Mr. Gallone was the representative plaintiff in the Quebec class action but was replaced by Mr. Diggs.
[^4]: These plaintiffs refer to the ten cases as “test” cases while Canada refers to them as “bellwether” cases since Canada takes the position that each Track 3 case is idiosyncratic so that no individual case can serve as a “test” case. While I use the term “test” case in these reasons, I make no finding as to this dispute of terminology between the parties.
[^5]: In these reasons, I refer to McMath and Loyie collectively as “these plaintiffs.”
[^6]: There were ten test cases initially scheduled to be heard by the SJ Judge. Five of them were heard in October 2023 and are the subject of the SJ Decision. Class counsel (acting as counsel in the test cases) submits that the test case brought by Mr. Darren Snell (“Snell”) has been abandoned, while Canada submits that the Snell test case cannot be abandoned without leave. The Snell motion has been adjourned sine die along with the other four remaining test cases. While the issue of whether leave is required to abandon the Snell summary judgment motion has not yet been determined, it is not likely that the Snell Track 3 case will proceed so I refer to four remaining test cases rather than five.
[^7]: Based on the test to establish a “serious question to be tried” under RJR-MacDonald, at pp. 334-335, 337-338.
[^8]: Based on the test to establish “good reason to doubt the correctness of the order” for leave to appeal as set out in Ash v. Lloyd’s Corp., at p. 284.
[^9]: For the purposes of this motion, these plaintiffs rely on Rule 12.06(3)(b) for the Leave Motion. These plaintiffs submit that “[t]he proposed leave motions have significant merit.” These plaintiffs do not submit on this motion that a court on the Leave Motion would find that the SJ Decision is a “miscarriage of justice” as required under Rule 12.06(3)(a).